Law on “Vaping” / Electronic Smoking In The Workplace

I’ve been asked a lot of questions about vaping in the work place. As you probably know vaping is the new phenomenon that smokers have turned to in an effort to be able to give up on smoking. It is basically the use of E cigarettes, which supply them with a certain of amount of nicotine, but it is meant to be a good way of weaning yourself off smoking. There have been some concerns by both employers and employees as how to manage this new social phenomenon.

Under the Health Act 2006, there are certain measures in place to protect people from the dangers of imbibing second hand smoke, but that actually doesn’t cover vaping, so that’s where the difficulty has arisen.

The place that this all starts is with the decision to be made by both the employer and employee. When I speak about that what I mean is on a broard, consultative level. So for example, I am a foundation governor of a secondary school, and there have been discussions as regards vaping and how to handle it. What we really have to analyse is what exactly the policies and procedures are that need to be put in place. I certainly know that that’s a discussion that’s probably being repeated throughout secondary schools and other organizations throughout the nation. So I think a good place to start is; how you feel about vaping, and what it is, if you are the employee who is doing it, what it is that does for you, what benefit you gain, and, the impact it may have at work. On the other hand, if you are the employer, you need to be thinking about what your concerns are about vaping, how it might impact other staff, and what effect the productivity for example. So I think the foundational level is figuring out quite where you are going to be going with that, and that is a process of consultation involving management and staff equally. Now some things you ought to bearing in mind if you are employer: If you were to decide that vaping is to be banned within the work place, might you come across as being very unsupportive of people who are trying desperately to stop smoking? Another thing that you could think about is whether that would mean that people who are trying to come off smoking would then have to take more frequent breaks in order to satisfy their cravings in some way by going outside to the park or whatever.

If you are the employee, you are equally going to be thinking how do I approach this as a new atmosphere of smoking vs vaping. There is a lot of discussion that hasn’t yet taken place. The other side of the things if you are an employer, is to be thinking about the people who don’t smoke and who don’t vape, how they are feeling, their discomfort, whether there are long term problems with vaping, because it is not something that is guaranteed as 100% safe.

There are also the issues that ensuring you are fair to all of your staff, so those who are taking smoking breaks or vaping breaks are treated the same way as people who don’t smoke and don’t vape, that may not require so many breaks from work.

So there are quite a few issues to be thrashed out before you can decide on your policy. Once you’ve got to the point of deciding the policy, you next need to think about what you going to put in it. There are some things I would say are the key issues you need to be thinking about.

For example, as an employer, you don’t have a responsibility to create a smoking shelter, so if staff smoke, you don’t have a responsibility to say this is the designated area for doing it. But if you do decide that you’ve got a smoking area, what are you going to do for people who vape and how you are going to handle this, because obviously if you are vaping, you don’t want to near a smoker because then it drags you back to the addiction. So that’s a kind of difficult course for the employer to navigate because they then become more almost like a peace keeper. So what are you going to put in place in terms of commendation for people who vape?

ensuring that the breaks are fairly allocated;

are you going to make it a disciplinary offence for people to vape in a prohibited area;

what are the prohibited areas going to be;

are you also going to make it an offence or disciplinary offence if vapers take longer periods to have a break or to vape than people who are just going off to have a cup of coffee;

how are you going to be now monitoring the breaks.

So these are some of the things you need to be thinking about. And it is quite a tricky area, and it is a fast developing one, so if you do need any assistance with this, please feel free to give ShenSmith Barristers a call, and we will happily give you a free consultation to help you with the initial stages and hopefully we will work together in future together to be able to create other policies as things develop in employment law.